The Five Biggest Obstacles to Winning a Malpractice Case

Moghim Medical Consulting BlogEach year, about seven percent of physicians are sued for malpractice, making it an almost certainty for any physician with a sustained career. While the idea of facing litigation can be quite anxiety-inducing, you should know that only 22 percent of malpractice suits are adjudicated in favor of the patient.  Among the specialties most often sued are neurosurgeons (19.1 percent) and thoracic-cardiovascular surgeons (18.9 percent). Meanwhile, psychiatrists (2.6 percent) and pediatricians (3.1 percent) see the lowest amount of law suits.

No one enjoys being the target of a lawsuit that questions your skills as a medical professional. However, you should take heart that the complainant has a much more difficult road ahead than yourself.  They must convince a court of law that the doctor acted in such poor judgment that they deserve to suffer punitive consequences. Most juries understand that medicine is a complex and challenging field. There are multiple methods and procedures that can result in unintentional failure. In order to prove that a physician is negligent, there must often be strong and compelling evidence of gross malfeasance.

Although the legal system naturally favors medical professionals, there is still a 71 percent chance that physicians in high risk specialties will be sued and lose at some point in their career.  This is probably not due to professional incompetence but related to the high risks associated with treatments in these specialties.

The major concerns for physicians at risk of litigation should be:

  1. Hire a competent malpractice lawyer .  Finding an experienced attorney who has handled malpractice actions can often make the difference between winning and losing.  If you can’t find an attorney who specializes in medical malpractice, try to find someone who has some experience with medical issues.  This is important because much of the litigation will involve medical concepts and practices.  Finally, look for an attorney with out-of-court settlement experience, as about 35 percent of malpractice suits are settled.
  2. Be patient.  Most malpractice lawsuits take months if not years to reach a conclusion. According to a 2006 NEJM study, the average length of time from injury to conclusion was five years. More complex cases typically take more time to conclude. This is because it takes more time to unravel complicated concepts/treatments to all parties, as well as involve witnesses.
  3. Involve your insurance carrier as soon as possible.  Even if a patient hasn’t yet filed suit, but you suspect they might, contact your malpractice insurance carrier so that they can recommend possible strategies.  They will likely urge you to secure records and find a malpractice lawyer.
  4. Cooperate with your legal team.  Your attorney should guide you through the litigation process, so be honest with him or her.  Trust their advice to get you through depositions and court procedures. If you are unsure of something, don’t be afraid to ask.
  5. Honestly appraise your potential outcomes.  There is nothing wrong with settling a malpractice suit.  It may save you years of frustration, and your insurance is likely to pay any penalties. If you believe that is your best option, strongly consider it. Before you make a decision on how to proceed evaluate your legal position and your opponent’s.

A malpractice lawsuit is a troubling development. However, as a competent physician trying to do the best for your patient, you’re likely to see a positive outcome.  Find a good legal team and let them handle the matter, so you can continue to focus on saving lives.

Article Written by:  Robert Moghim, M.D.,- CEO Moghim Medical Consulting Inc.

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